The Dormant Commerce Clause (Part I)

Most of us have heard of the commerce clause: Article 1, Section 8, clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But what is the Dormant Commerce Clause? It is the negative commerce clause where the Court has given themselves the power of jurisdiction over cases involving State restrictions or burdens over interstate commerce even in the absence of a conflict between federal statutes. In this article, many of the Dormant Commerce Clause cases in U.S. history are revealed and how this judiciary theory has further increased the size, scope, and power of the Federal government over the States.

Brown v. Maryland (1827): The Court held that a Maryland statute requiring importers of foreign goods had to purchase a license to sell those goods violated the commerce clause. Since, importers of goods from other states did not face the same burdens, this ruling was correct because it unfairly violated the liberties of Maryland importers.

Wilson v. Blackbird Creek Company (1829): The Court ruled that the state construction of a damn did not violate the commerce clause even though it may actually interfere with commerce at some point in the future. Chief Justice John Marshall first used the term “Dormant Commerce Clause” when writing the majority opinion for this case in what I believe to mean slowing down, interfering, or slightly delaying commerce activity, not stopping it. The Marshall Court applied the commerce clause properly to the states: State police power trumped federal police power unless it violated the liberties of individuals.

Coley v. Board of Wardens (1852): The Court upheld a Pennsylvania statute requiring all ships entering Philadelphia harbor to hire a local pilot did not violate the commerce clause. This was obviously intended as a safety requirement to protect life, liberty, and property of individuals using the harbor and it was not meant to delay commerce.

Wabash, St. Louis, and Pacific Railway Company v. Illinois (1886): This was a significant case because it severely limited state rights under the commerce clause. It was the first instance where the court allowed the federal government to intrude on state activities over economic issues. What’s worse, the result of the Wabash decision led to the introduction of the first regulatory agency in the federal government: The Interstate Commerce Commission.

Swift Company v United States (1905): The Court held that the federal government can regulate monopolies. This allowed Teddy Roosevelt to assault the “Beef Trust” for price fixing. Congress followed with the Pure Food and Drug Act and the Meat Inspection Act of 1906. This was the beginning of unlimited Federal authority over all economic issues via the commerce clause.

George W. Bush and Sons v. Malloy (1925): The Court held a Maryland law requiring business carriers within the state to purchase licenses or certificates to engage in commerce illegal. This ruling was similar to Brown v. Maryland one hundred years earlier.

Edward v. California (1941): The Court struck down California’s “indigent person” law as unconstitutional in violation of commerce clause because it denies certain person’s from other states the right to move to California. This is a sound decision because it protects individual liberty.

Southern Pacific Company v. Arizona (1945): The Court held an Arizona law placing railway car limits on passenger and freight trains for safety purpose unconstitutional. Justices Black and Douglas dissented arguing the difference between “discrimination and burdens placed on interstate commerce.” States should be allowed to enact laws to protect the safety and health of its citizens without government intrusion because they view it as either a “burden or that the law discriminates”.

Dean Milk v. Madison (1951): The Court held that a municipal law requiring all milk sold in Madison Wisconsin to be pasteurized at an approved plant within 5 miles of the city violated the commerce clause. Once again, this law was enacted to protect the safety and health of Madison residents.

Miller Brothers v. Maryland (1954): The Court ruled that an out of state business was not responsible for collecting a “use tax” from Maryland citizens who purchased product from an out of state vendor. Since Maryland residents went directly to Delaware to buy the products, Miller Brothers had no “contact” with Maryland. However, the Court ruled that Maryland citizens were responsible for the tax.

Bibb v. Navajo Freight Lines (1959): The Court held that an Illinois law requiring trucks to have curved mudguards instead of straight ones for safety purposes violated the commerce clause. This may be the most ridiculous abridgement of federal power since this statute did nothing to mitigate commerce. The law was enacted merely for safety and health purposes.

Florida Avocado Growers v. Paul (1963): The Court held that a California law imposing fat standards on Avocados did not violate the commerce clause or the equal protection clause.

National Bellas Hess v. Illinois (1967): The Court held that the commerce clause prohibits one state from levying a use or sales tax on out of state businesses who have minimal contact with the state: such as with orders filled through the mail only. This ruling was consistent with the 1954 Miller Brothers case.

Pike v. Church (1970): The Court struck down an Arizona law requiring Cantaloupe growers from placing the state symbol on packaging. The Court ruled it was too high a cost burden to ask growers to adhere to the law. Church did, however, ship his Cantaloupe to California to be packaged. The Court was probably right that the law infringed on Church’s liberties, but it had very little to do with limiting commerce.

How the Supreme Court Denies Federalism and Liberty (Part III)

The 1985 case Garcia v. San Antonio Metropolitan Transit Authority held that Congress had the power via the commerce clause to extend the Fair Labor Standards Act (FLSA) to the States. The FLSA was passed in 1938 and requires that state governments pay employees a minimum wage and overtime. In 1968 the Court held in Maryland v. Wirtz that Congress had the authority via the commerce clause to regulate hospital and school employee wages and overtime (obviously, this is intrastate and not interstate commerce – the expansion of the commerce clause continues). Justice Blackmun wrote the majority opinion and said that Congress could use the Constitution’s supremacy clause to preempt any state laws that conflict with FLSA standards. In her dissent, Justice Sandra Day O’Connor expressed concern over how the interstate commerce power of Congress can be used to control every economic aspect in society. Justice Powell dissented saying “The State’s role in our system of government is a matter of Constitutional law, not legislative grace”. In the 1995 case United States v. Lopez Justice Rehnquist did not overturn Garcia but emphasized the need to regulate or set standards for interstate commerce. The Garcia ruling overturned the 1976 case National League v. Usery where the Court claimed the FLSA could NOT be applied to the states. Justice Rehnquist concluded economic decision such as wages, overtime pay, and compensation were best decided by the states. For instance, a national minimum wage does not consider the cost of living in all of the states. In some states, with a high cost of living, the minimum wage may not be enough, but in states with a low cost of living, the minimum wage could be detrimental to businesses and employment. For these reasons, the Federal government and Court have no business deciding economic decisions for the states.

By the 1990s some of the power of Congressional coercion and the commerce clause began to dwindle. In the 1992 decision for New York v. United States the court held that the Low-Level Radioactive Waste Policy (LLRWP) of 1985 exceeded Congress’s power under the commerce clause. However, only one of three provisions of LLRWP was found unconstitutional. Justice O’Connor found that the provision in question of the LLRWP attempted to “commandeer” or coerce state governments to participate in the program.

In the 1988 case South Carolina v. Baker the Court ruled that the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) did not violate the Tenth Amendment. The federal government continued its practice of allowing a federal tax exemption for state bonds except in the case of bearer bonds. South Carolina sued to reinstate all its bonds for tax exempt benefits and status. The 2000 case between Reno v. Condon the Court held the Driver’s Privacy Protection Act of 1994 (DPPA) was Constitutional. Chief Justice Rehnquist wrote the unanimous decision citing the commerce clause in a challenge by the state of Nevada. Since Nevada was selling personal information of driver license applicants, the Court ruled that they violated the commerce clause because some of that information can travel across state lines. Rehnquist also held that the DPPA law was not coercive in any matter. The Court’s imagination for creating new rights in the Constitution is only matched by the Court’s imagination to find applications for the commerce clause. In Hunter it was established that States can make bad laws. The Nevada law’s attempt to get more revenue was not much different than ObamaCare’s mandate to get more revenue – both uniquely bad in nature. In Reno the Court assumes some information will cross state lines without actual proof that it is happening. However, in Filburn, it was established that 0% of the goods have to cross state lines for it to be considered violating interstate commerce. The Court’s rationale was that since Filburn had more crops to feed his assets, less crops would have to travel to his state. The DPPA is further proof of how powerful and how imaginative the federal government and the Court has become in applying the commerce clause. There is one question the Court has refused to answer over years of strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The Lopez, Bond, and New York decisions provided some hope over the past two decades. There was one other promising case where the Court emphasized state rights. In the 1997 case Printz v. United States the Court held certain provisions of the Brady Handgun Violence Prevention Act of 1993 (BHVPA) were unconstitutional. BHVPA required state attorney generals to create a background check system to prevent the sales of guns to people prohibited to own guns such as felons. Printz objected to state officials being coerced into executing a federal law. Justice Antonin Scalia agreed that the federal government drafting state officials to run its programs and laws is unconstitutional citing New York v. United States. In his dissent Justice John Paul Stevens said the government could use the commerce clause to regulate handguns as well as the necessary and proper clause to pass any law it sees fit to carry out its enumerated powers (gun control is not an enumerated power of the federal government). The Printz ruling was instrumental to the Court applying the Second Amendment to the States in Heller v. DC or McDonald v. Chicago (Just as the Warren Court applied other Bill of Right amendments to the states in the 1960s). Hence, Justice Steven’s commerce clause claims in his Printz dissent were proven wrong.

How the Supreme Court Denies Federalism and Liberty (Part II)

The 1937 case Steward Machine Company v. Davis the Court upheld the unemployment compensation provision of the 1935 Social Security Act. In Steward, the Court showed it had a broad interpretation of Federal government powers over the states. Both the Social Security Act and the unemployment provision were coercive just as was every entitlement act to follow in American history. For instance, if states opted out of entitlement laws, then they would never recoup the Federal tax monies paid by its constituents. Justice Cardozo wrote “the petitioner confuses motive with coercion” since “The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another”. That may be true, but the federal government never takes advice from the states. There is a fine line between motive and coercion and that is precisely why laws should be constructed carefully. The Court also ruled that the Social Security Act were necessary and proper to promote the general welfare of the nation to fight the Great Depression. In his dissent, Justice McReynolds wrote “I cannot find any authority in the Constitution for making the federal government the great almoner of public charity throughout the United States”. Justice Sutherland correctly predicted that “encroachments upon other functions, will follow”. He also added “Imposing a tax that could be avoided only by contributing to a state unemployment compensation fund was effectively coercing each state to make law creating such a fund.” Steward marked the beginning of New Deal programs that were found constitutional by using the spending clause to promote the general welfare of the nation. The precedent for this decision was set in the 1935 case United States v. Butler. Although the decision invalidated many provisions of FDR’s 1933 Agriculture Adjustment Act, for some reason the Court felt compelled to provide an expansive interpretation of the spending clause as it pertains to the promotion of the general welfare of the nation. In fact, the Court suggested that Congress had powers not enumerated in the Constitution when using the spending clause. By 1938, FDR passed a new Agriculture Adjustment Act (AAA) and the Court in Wickard v. Filburn decided that a farmer could not grow more than what was allotted by the AAA because it would violate the commerce clause. Filburn was using the excess crops he grew to feed his farm animals and families, yet the Court decided that even this act violated the interstate commerce clause. So, it was legal for the government (under the AAA) to dictate how many acres of crops a farmer could grow; how much tonnage of crops could be harvested for sale; and how much of the crops can be used to feed your family and farm animals. If this does not violate the Tenth Amendment, then nothing will ever violate the amendment. In a similar case to Steward, in South Dakota v. Dole the Court held that Congress could withhold federal highway money if states did not raise the drinking age to 21. Liberals call the South Dakota ruling incentive, but conservative call it what it rightly is: coercion. Many individuals have been convicted of blackmail using similar types of “incentive” requests in exchange for money. Steward was a big shift in the Court who just two years earlier invalidated FDR’s National Industrial Recovery Act (NIRA) of 1933 in Schechter Poultry Company v. United States. This was a unanimous decision where the Court ruled that NIRA and FDR could not use the commerce clause for wage fixing, maximum work hours, and the right for unions to organize. The Court found NIRA violated the Tenth Amendment. The Court quickly changed its mind on economic regulations with West Coast Hotel Company v. Parrish in 1935. After Parrish the commerce clause began to grow in size and scope such as in cases like National Labor Relations Board v. Jones and Laughlin Steel Corporation in 1937. By 1995, the Court finally tried to reign in the limits of the commerce clause in cases such as United States v. Lopez and in Bond v. United States in 2014.

The 1947 case United Public Workers v. Mitchell found that the Hatch Act of 1939 did not violate the First, Fifth, Ninth, or Tenth Amendments of the Constitution. The Hatch Act placed political activity restrictions on federal employees. The 1800s “Doctrine of Privilege” which claimed that “public employment was a privilege, not a right” and hence, restriction can be placed on employees. Justice Stanley Reed wrote the majority decision. Reed noted that in United States v. Wurzbach in 1930 the Court upheld the “Doctrine of Privilege” even though it violated rights guaranteed by the Constitution. The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people”. Liberals falsely claim that the Ninth Amendment guarantees rights not mentioned in the Bill of the Rights. The Ninth Amendment actually assures that nothing written in the Constitution can deny or cancel any of the Amendments. However, Justice Reed claimed that since the Ninth and Tenth amendments are “reserved” powers, rather than enumerated powers, and therefore, they carry less weight than say the First or Fifth Amendments. The Mitchell decision was upheld in 1973 in United States Civil Service Commission v. National Association of Letter Carriers. The Mitchell decision was only one of seven Tenth Amendments cases decided before 1965 and it was the only way to do so in a substantive way. Many legal scholars do not agree with Reed’s assessment of the Ninth and Tenth Amendment because it basically makes them meaningless compared to other Amendments. However, the fact that Reed uses the Ninth Amendment together with the Tenth Amendment it does overall strengthen the Tenth Amendment, but not to the degree of the first eight Bill of Rights amendments.

How the Supreme Court Denies Federalism and Liberty (Part I)

The Supreme Court has denied state rights time and time again. The Tenth Amendment says: “The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The Court circumvents state rights through the following techniques: making up imaginary rights, Constitutional avoidance, coercion, mitigating the strength of the Tenth Amendment, the commerce clause, treaties, the spending clause, the general welfare clause, the necessary and proper clause, and the supremacy clause. To view how the Court uses imaginary rights such as the right to privacy to breach State rights please read my articles: “The Supreme Court on Sex, Obscenity, and Marriage” or the “Liberal Evolution of Due Process”.

The 1906 case between Hunter v. Pittsburgh the Court set the standard that state sovereignty ruled over local governments and hence state laws trump local municipality laws. “Although the inhabitants and property owners may, by such changes, suffer inconveniences, and their property may be lessened in value by the burden of increased taxation, or for any reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it”. This decision is important because the outcome of this case is very similar to how the Supreme Court decides cases involving the federal government and the states: Federal government laws trump state laws.

The 1920 case Missouri v. Holland held that a Treaty (Migratory Bird Treaty Act of 1918 - MBTA) trumped the Tenth Amendment via the supremacy clause. The MBTA restricted hunting of migratory birds. Congress purposefully made a Treaty with Canada (England) to avoid or circumvent a Tenth Amendment fight. The state of Missouri argued that the Federal government could not create a Treaty over the subject of birds. Justice Oliver Wendell Holmes wrote the majority opinion stating that treaty provisions were not questionable by the states. Holmes also went on to declare that the Constitution is a living document and hence, allowed to change over time. The Missouri ruling led to proposed amendments that would limit the scope of Treaties created by the executive branch to breach state rights (they never passed). Missouri has not been overruled but recent precedent has probably made it moot. For instance, the 1914 decision in Bond v. United States the Court held that the Chemical Warfare Act could not be applied to the States. Clarence Thomas was the first to place a standard on treaties when he wrote that a treaty cannot regulate “purely domestic affairs”. Scalia called Holmes’s opinion in Missouri as “unreasoned”. Although Chief Justice Roberts used Constitutional avoidance and declined to define limits of Treaty power (as Thomas tried), it was clear limits existed based on the 9-0 unanimous decision.

Constitutional avoidance was used in the 1936 case Ashwander v. Tennessee Valley Authority (TVA). The Court avoided addressing the challenge to the Constitutionality of the government program (TVA): Does the Federal Government have the right to create an energy company to compete against the private sector? Instead, the Court upheld Congress’s authority to generate electricity by validating its business contracts. The Court also concluded Congress had commerce authority to construct a damn to create electricity. Justice Brandeis concluded that the plaintiffs had no right to interfere in corporate governance under the substantive due process of the law. Brandeis further concluded due to separation of powers that one branch of government should not “encroach upon the domain of another”. Brandeis authored a doctrine of seven rules outlining a convoluted theory called Constitutional avoidance which was used to bypass questions placed before the Court. Although the government has no Constitutional authority to create an electricity company, through avoidance the Supreme Court implicitly granted the Federal Government the authority to do so. Brandeis separation of powers argument is hard to swallow. According to Hamilton in the Federalist Papers, the goal of the Supreme Court is to provide a check and balance over the Legislative branch to ensure they are not passing unconstitutional legislation.

The Supreme Court on Sex, Obscenity, and Marriage (Part V)

People are obviously missing the point on the importance or significance of marriage in Windsor and Obergefell. The only reason these cases are important is not out of love, but for economic concerns. Liberals argue that the Court ruled in favor of love. That is not true. First, the Court cannot rule using emotion over law. Secondly, in Windsor she faced much higher estate tax rates after her partner died. Windsor did not fight the issue of same sex marriage when her partner was alive. It is important to note that married couples do have several federal tax advantages over single persons. And in the private sector some companies may provide lower benefit costs for partners and spouses. Therefore, the question that needs to be addressed is why marriage is a basis for any economic advantages over single persons. One purpose is to promote families. Families are important to the economic survival of the country. For instance, more tax payers are needed to pay for the future unfunded liabilities generated by the government entitlement system. Of course, this reason does not necessarily include the usefulness of gay marriages unless they adopt children.

Marriage used to be a purely religious function. However, today, the number of civil marriages are increasing (gay marriage is one reason). Today, about two-thirds of all marriages are religious in nature. However, the definition of a religious marriage and civil marriage are vastly different. Religious marriages tend to have the traditional definition for marriage (between one man and one women) and civil marriages omit the gender requirement from the definition or marriage. More importantly, statistics show that religious marriages have a much higher chance of success (close to 40% better). For these reasons, Obergefell and Windsor, may lead to a complete separation between civil and religious marriages. For instance, churches do not have to file a civil wedding paperwork with the state – they generally do it out of courtesy. Furthermore, just as the Catholic Church can deny a heterosexual marriage for compatibility issues they can deny a homosexual marriage (hence deny does not mean discrimination). If marriage was truly a religious function (as was intended by traditional American customs) then it would be easy to rule upon Windsor and Obergefell. Thomas Jefferson wrote that the “establishment clause” of the First Amendment provided for the separation of church and state. This philosophy was upheld in Reynolds v. United States in 1879 and Everson v. Board of Education in 1947. Hence, DOMA would be unconstitutional on the grounds the law violates separation of church and state (Establishment Clause). Besides, the federal government would have no reason to pass DOMA in the first place if all marriages were religious. And Obergefell would be denied the right to gay marriage for the same reason as the DOMA case.

The question that needs to be resolved are the unfair and unequal treatment of citizens in the federal tax scheme. If taxes were fair to all; if all corporate benefits allowed spouses, friends, and partners to be added at cost; and marriage was only recognized by the church and not the state or federal governments then Obergefell and Windsor would have no meaning (marriage does not provide any advantage). In Windsor, the question of marriage was not the issue since Windsor was single because her partner died when she filed suit. Therefore, the question before the Court was not the “unfairness” of marriage, but the “unfairness” of the federal government’s tax code. If single people can be treated differently than married people under the federal tax code and it is not seen to violate the equal protection clause of the Fourteenth Amendment, then it is hard to reason how gay marriage and traditional marriage are seen to be equal under the equal protection clause. This is especially true for traditional marriages held within churches. After all, without traditional marriage the human race would cease to exist which makes it vastly different in nature than gay marriages.

The Supreme Court on Sex, Obscenity, and Marriage (Part IV)

In the 2003 case Lawrence v. Texas, the Court overturned Bowers and outlawed all homosexual sodomy laws in the 13 states that still has such statutes. Justice Anthony Kennedy wrote the majority decision saying sodomy was protected through the right of privacy (Griswold) obtained via the due process clause of the Fourteenth Amendment. Kennedy described the “right to privacy” found in Griswold as “the beginning point” in the evolution of concepts found in Lawrence. Sandra Day O’Connor voted with the majority but felt the Texas law violated the equal protection clause of the Fourteenth Amendment. Justice Clarence Thomas in his dissent used the same argument as Justice Potter Stewart in his dissent of Griswold: “it is a silly law, but still constitutional”. Justice Antonin Scalia in his dissent proclaimed many of the arguments used by the majority opinion could be used to overturn Roe v. Wade. The Lawrence precedent led to other sex cases on consensual incest, fornication, and consensual statutory sex decided in state courts. Remember the “Slippery Slope” warned by Justice White in Bowers? He was right, the Lawrence ruling opened the door for people trying to find a “constitutional right” for sleeping with their sister or under aged students. These sex acts may be taboo in American history or tradition, but that has not stopped the Court in past to find these types of issues constitutional. Based on Lawrence, and the right to privacy, it seems any act of sex is Constitutional. Once again, the right of privacy is a broad and ambiguous term that basically has no limits and the Court has failed to set any standards on the meaning of privacy.

The 2013 case United States v. Windsor overturned the 1996 Defense of Marriage Act (DOMA) on the basis of the Fifth Amendment’s equal protection clause. DOMA defined marriage as a union between one man and one woman. Windsor was married in Canada with her partner but their marriage was not recognized in the United States. After Windsor’s partner died, she owed a huge estate tax that would have been much less if the Federal government recognized her marriage. Antonin Scalia in his dissent claimed that the Supreme Court did not have jurisdiction to review the case nor the power to invalidate a democratically enacted law. Scalia also argued that the majority opinion is wrong in assuming that the Court has the final say on federal government laws. Alito once again argued that same sex marriage is not deeply rooted in American tradition to qualify as a substantive due process right. DOMA was merely a definition of marriage as being between one male and one female. Marriage is the cornerstone of all life on earth.

The landmark gay marriage case in 2015 was Obergefell v. Hodges. The Court ruled that gay marriage was legal based on both the equal protection and due process clauses of the Fourteenth Amendment. The case was decided by a 5-4 decision with the same result as United States v. Windsor (Same Justices concurring and dissenting). All states now have to issue same sex marriage licenses and recognize all same sex marriages. The majority decision cited Griswold’s right for privacy; Loving v. Virginia that provided the right for biracial marriages; and Lawrence v. Texas that provided the right for homosexual sodomy. Chief Justice John Roberts wrote the dissenting opinion and said that the majority decision is based on moral convictions and not the law. He also argued that the majority opinion opens the door for the legalization of polygamy and the decision will have consequences against religious freedom. Roberts further argues that the right to privacy is not at issue since gay behavior is not subject to government intrusion or punitive action. Justice Samuel Alito wrote a dissent citing Washington v. Glucksberg which states the due process clause only protects values or traditions that are deeply rooted in American history. Justice Clarence Thomas states the only liberty protected by the due process clause is that from government restraint and not a government entitlement such as a marriage license. Justice Antonin Scalia argues that by deciding gay-marriage, the national democratic process has come to a halt. The Court decision wiped out hundreds of statutes and laws in all 50 states. Most landmark civil-rights issues are decided by amending the Constitution: Slavery or women’s right to vote. Is it right to consider gay marriage as being the same thing as traditional marriage? An apple and orange are both types of fruit but they are not the same or equal. Gay couples can adopt and raise a family, but not in the traditional sense of childrearing. Citing Loving makes little sense because theirs was a traditional marriage. Citing Griswold makes little sense based on Roberts point and the fact that marriages are not private, they are open for all to see with a government record. And citing Lawrence makes no sense because single couples can partake in sex just as homosexual partners partake in sodomy. By changing the gender clause in the definition of marriage it opens up the argument for changing the number requirement of 2 in the definition of marriage or even that marriage has to be between humans. Does a marriage between 5 people require equal protection under the law or does a dog require equal protection under the law for being wed to its owner? It is a “slippery slope” when the Court feels compelled to overstep its bounds of the Constitution and interfere on state matters.

The Supreme Court on Sex, Obscenity, and Marriage (Part III)

The 1973 case between Roe v. Wade decided by a 7-2 margin declared that a Texas statute making abortion illegal was unconstitutional based on the right of privacy (Griswold) guaranteed through the due process clause of the Fourteenth Amendment. The Court did not use the rational of applying the right of privacy by means of the Ninth Amendment as was also done in Griswold. Justice Harry Blackmun wrote the majority ruling and obviously was not influenced by the opposing argument wanting a right to life for a fetus. Justice William Rehnquist and Byron White wrote dissenting opinions. Rehnquist argues that the framers of the Constitution were not aware of abortion issues in 1789 (hence abortion issues have no federal jurisdiction). Connecticut placed the first abortion laws on the book in 1821. When the Fourteenth Amendment was drafted in 1868, there were over 30 state and territory laws limiting abortion, 21 of which remain on the books today. The Roe decision invalidated hundreds of laws and statutes in all 50 states. Like Buck, Roe is a discriminatory inhumane act against fetuses. Margaret Sanger, the founder of Planned Parenthood started her mission of population control (not just birth control) back in 1914. Both Roe and Buck are population control measures. Today, Planned Parenthood sells aborted fetal tissue to research outlets. That is not a crime, but what is a crime is that Planned Parenthood has a monetary incentive to influence women to have an abortion. This is analogous to having a sitting Senator also being a lobbyist for Big Oil companies. This is a conflict of interest. And, most importantly, if first term fetuses are not considered living persons then why are their organs and tissues needed to cure ailments in humans that synthetic drugs cannot? Premature babies live at 20 weeks and some born at 13 weeks live, but only for a short time. Since Liberals declare themselves the Party of science it should be apparent to them that a baby’s (fetus) nervous systems is developing in the first trimester and they therefore have the ability to feel pain. An abortion (with the absence of a crime or health issue to the mother) is analogous to a spouse killing their partner to avoid a divorce. There are better solutions than to kill a fetus – such as adoption. If the government or Planned Parenthood placed more time and emphasis into the subject of adoption then maybe there would be little need for abortions. It is ironic that Justice Brennan talks about “state government intrusion” in many of his opinions but the Court legalizes, mostly unnecessary, medical procedures for sterilization and abortion. What can possibly be more federally intrusive governance than the decisions for Korematsu, Buck, and Roe?

The 1986 case Bowers v. Hardwick, in a 5-4 decision, the Supreme Court upheld the constitutionality of a Georgia sodomy law. Although the law did not specify any difference between consensual homosexual sodomy and heterosexual sodomy, the majority decision of the Court based its decision on the former. Justice Byron White wrote the majority opinion stating “to claim that a right to engage in such conduct is deeply rooted in this Nation’s history and tradition or implicit with the concept of ordered liberty is at best, facetious”. In other words, in the past the Court has provided “substantive due process” rights not listed in the Constitution if they were “deep rooted in American traditions”. Obviously, homosexuality was not an American tradition (nor was the right to an abortion or contraception). In fact, homosexuality was taboo in American and world history and is still taboo to most religious Americans. However, with social changes in society occurring over time, homosexuality is much more tolerated today, but its acceptance in not deep rooted in American history. Justice White also warned about the potential implications of going down the path of a “slippery slope” when it comes to ruling on other sex laws. Justice Harry Blackmun wrote the dissent and did not understand why the majority opinion focused solely on “homosexual activity”. Justice John Paul Steven’s dissent cited Griswold v. Connecticut and Eisenstadt v. Baird. In Griswold the Court found a Connecticut statute unconstitutional that denied contraception to married couples based person’s right to privacy. Although privacy did not exist in the Constitution the Court made up this right to rule the Connecticut law unconstitutional. In Eisenstadt the Court conversely found a Massachusetts statute unconstitutional that denied contraception to unmarried persons based on the equal protection clause of the Fourteenth Amendment and the right to privacy.

There were a couple of interesting aspects to the Bowers case. First, Georgia District Attorney, Lewis Slaton, did not prosecute the sodomy charge because he felt the law should not be used to prosecute consensual sex. Secondly, Blackmun revealed that his openly gay clerk, Pamela Karlan, wrote his dissent. Thirdly, most states invalidated their sodomy laws in the years following the Bowers decision (even though the law was upheld – social changes influence states to change laws). By 2003, only 13 states continued to have sodomy laws on the books. And finally, it was extremely rare when sodomy laws were used against consensual sex or in the privacy of someone’s home (no one would know if the act was being done in privacy). So it begs to question: Why did the Supreme Court even rule on this case since there was no conviction or punitive damages? Why would Blackmun let a gay clerk write the opinion? Deciding cases on emotion and not the law is a serious offense in our judicial system. Finally, why is the Court deciding cases on issues where State statutes and laws are already evolving to keep up with social changes in our environment (Let alone the Court has no standing in sodomy cases as Justice Harlan points out in Roth on obscenity)?

The Supreme Court on Sex, Obscenity, and Marriage (Part II)

Griswold was a director of a Planned Parenthood clinic and was arrested and convicted for handing out conception to women at the birth control clinic. In 1961, the Supreme Court refused to hear a similar case, Poe v. Ullman since the plaintiffs had not been charged or faced prosecution. Griswold and Planned Parenthood actively sought a case to challenge the contraception law. Nobody would have ever predicted the paramount significance of this case. The imaginary (substantive) right to privacy lead to many more rights not found in the Constitution: the right of birth control for unmarried couples (Eisenstadt v. Baird); the right of abortion for women in Roe v. Wade in 1973; and the right to homosexual sodomy (Lawrence v. Texas) in 2003. All of these rights according to the Court are guaranteed through the imaginative and ambiguous right to privacy. Privacy is a very broad subject, and the Court did nothing to set any definition or standards for privacy as our Founding Fathers did in the Bill of Rights. Griswold may be the most influential decision in the Court’s history. Yet, it was a case over a dying and hardly used statute and the majority opinion could not even agree on how to read its substantive due process (imaginary) right to privacy into the Constitution. If the right of privacy is in the constitution, one would imagine that the seven majority Justices could agree upon a standard or theory as to how to apply the substantive due process principle to guarantee the right of privacy.

The Loving v. Virginia decision in 1967 invalidated laws prohibiting interracial marriages based on both the due process and equal protection clauses of the Fourteenth Amendment. The Loving decision was precisely the reason the Fourteenth Amendment was ratified: To protect a group of people (in this case African-Americans) from inhumane treatment and or discriminatory laws and statutes. This decision was sound.

The 1972 case Eisenstadt v. Baird established the right for unmarried people to possess contraception striking down a Massachusetts statute based on the equal protection clause of the Fourteenth Amendment. Justice William Brennan wrote the majority opinion citing that the Massachusetts law lacked a rational basis that the law was used to protect the public health. He also cited Griswold v. Connecticut that since States could no longer withhold contraception to married couples therefore, it follows that States cannot withhold contraception to unmarried persons (also based on the right to privacy). Oddly, Brennan’s ruling conceded that states may prohibit sex outside of marriage. If that is true, then why would unmarried people need contraception? Wouldn’t providing single people contraception influence them to break the law by having sex? If prohibiting sex for unmarried people does not violate the equal protection clause then it would follow that denying unmarried people contraception should not violate the equal protection clause either. Brennan’s statement: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” has led Eisenstadt to be cited in well over 50 Supreme Court cases. Of course, the Eisenstadt precedent resulted in the Court overruling a New York statute in Carey v. Population Service International prohibiting contraception distribution for minors under 16. While deciding these cases the Court never considered questions such as would the availability of contraception lead to more or less promiscuity? If prosecuting sex outside of marriage is legal, then why isn’t denying contraception illegal? Why are only State government laws intrusive to individuals but not Supreme Court rulings? In fact, in Hunter v. Pittsburgh the Court ruled in 1906 that State laws trump municipality laws regardless to how good or bad they may be. In other words, bad State laws can still be constitutional.

To better understand the evil nature of the Court (government intrusion) we can turn to two of the most horrific decisions in the history of the Supreme Court: Buck v. Bell in 1927 and Roe v. Wade in 1973. In Buck v. Bell, the Court upheld a Virginia law for the compulsory sterilization of “intellectually disabled” persons by a vote of 8-1. The Court said the law did not violate the due process clause of the Fourteenth Amendment. This is crazy! If there was ever a time to use the due process clause of the Fourteenth Amendment, Buck v. Bell was it! This law was not only discriminatory but it was inhumane treatment toward a specific group of people. The Fourteenth Amendment was written to not only end discrimination but to stop the barbaric inhumane treatment toward a race of people: African-Americans. Similarly, in 1944, the evil Court upheld a FDR executive action to intern Japanese Americans (Korematsu v. United States). This was no better behavior than Hitler interning Jews in concentration camps. This was not only discrimination but barbaric inhumane treatment toward a specific race of people (German-Americans did not face the same fate during WWII) covered specifically by the due process clause of the Fourteenth Amendment. The lone dissenting justice in the Buck case (Pierce Butler) did not write a dissenting viewpoint (another travesty of the case). In the majority opinion, the so called “Great” Justice Oliver Wendell Holmes wrote “three generations of imbeciles are enough” about the Buck family. Hence, Carrie Buck was sterilized, but she did lead a productive life. The goal of sterilization was to create an “optimum gene pool” based on the theories of eugenicist Harry Laughlin. Hitler and Nazi Germany used Laughlin’s models to “prevent diseased offspring”. At the Nuremberg war crimes trials after WWII, Nazi doctors on trial quoted Holmes’s majority opinion in their defense. The implications of the Buck decision not only created more sterilization laws, but they were enforced more strictly (few states had statutes before Buck and they were barely enforced). The 1942 case Skinner v. Oklahoma did not overturn Buck but it discouraged most sterilizations (Buck has never been overturned, nor has Korematsu). After Skinner states began to remove sterilization laws from their books and sterilizations finally ended in the early 1960s (no thanks to the Supreme Court). One may ask, if a state can legally sterilize a person, then what is the big deal if two states have a dumb law such as denying contraception to married people?

The Supreme Court on Sex, Obscenity, and Marriage (Part I)

The Constitution mentions nothing about sex, obscenity, and marriage, but that has not stopped the Federal government and Supreme Court from infringing on State rights. The Court interferes on State rights by using moral convictions to conjure up imaginary rights or standards to push its agenda.

The Roth v. United States case in 1957 created a standard for what constitutes obscene material that is not protected by the First Amendment. The Court upheld the conviction of Roth in this case by a 6-3 vote. The Court defined obscenity as a “dominate theme taken as a whole appeals to the prurient interest to the average person, applying contemporary community standards”. William Brennan wrote the majority decision and confirmed that obscenity was not protected by the First Amendment. Justice Hugo Black and William O. Douglass dissented arguing that all obscene material was in fact protected by the First Amendment. Justice John Marshall Harlan II dissented because in his opinion only states had the right to prosecute obscenity and the federal government had no standing. In Memoirs v. Massachusetts in 1966 the Court updated its definition for obscenity as “patently offensive” or “without redeeming social value”. The Earl Warren Court’s decisions to broadly define obscenity helped fuel the sexual revolution in the late 1960s. In Miller v. California in 1973 the court further defined obscenity as lacking “serious literary, artistic, political or scientific value”. Justice Brennan changed his argument claiming “no formulations of this Court, the Congress, or the States, can adequately distinguish obscene material unprotected by the First Amendment from protected expression”. But others can argue that the opposite is true: can someone adequately distinguish obscene material protected by the First Amendment from protected expression. The bottom line, the Supreme Court’s meddling in issues beyond their jurisdiction did nothing to clear up obscenity and its application towards the First Amendment. It was a failure for the Court to overstep its bounds by setting convoluted and ever changing standards. The Court should have relied on the individual states to handle the issues surrounding obscenity since the Federal Government has no jurisdiction, but instead the Court relied on the First Amendment to intrude and meddle on state laws and statutes.

The 1965 case Griswold v. Connecticut was a landmark case where the Court struck down a statute which prohibited married couples from using contraception. The Court invalidated the law because it violated the “right to privacy” and people have the right to be free from “government intrusion” according to Justice William Brennan. Funny how the Court only sees government intrusion violations coming from the states but not from within its own chamber. By the 1950s only two states had statutes prohibiting contraception for married couples (Connecticut and Massachusetts). Obviously, states were invalidating these laws and the statute was rarely enforced (how would anyone know if the use of contraception was happening in privacy). Majority opinions varied on the application to the right of privacy from using the Fourteenth Amendment due process clause (Justice John Marshall Harlan II and Byron White) to the use of the Ninth Amendment (Justice Arthur Goldberg). The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people”. Liberals falsely claim that the Ninth Amendment guarantees rights not mentioned in the Bill of the Rights. The Ninth Amendment actually assures that nothing written in the Constitution can deny or cancel any of the Amendments. Justice William O. Douglas went further by declaring that the Bill of Rights contained “other Constitutional protections” (based on the imagination of each individual Justice?). Even a liberal Justice, Hugo Black, dissented. He correctly asserts that the right of privacy cannot be found in the Constitution. Justice Potter Stewart also dissented saying the statute was “an uncommonly silly law” but it was Constitutional because it was beyond the enumerated powers of the Federal Government to interfere.